[Cite as State v. Rush, 2012-Ohio-5919.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 25179 

vs. : T.C. CASE NO. 2011CR721 

DEMETRIOUS H. RUSH : (Criminal Appeal from the 

 Common Pleas Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 14th day of December, 2012. 

 . . . . . . . . . 

Mathias H. Heck, Jr., Prosecuting Attorney, by Andrew T. French, Assistant 

Prosecuting Attorney, Atty. Reg. No. 0069384, P.O. Box 972, 301 West Third Street, 

Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

Herbert Creech, Atty. Reg. No. 0005198, 200 F Jamestown Circle, Dayton, Ohio 45458 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant Demetrious Rush appeals his conviction and sentence for improper 

handling of a firearm in a motor vehicle, R.C. 2923.16(B), a felony of the fourth degree. 

{¶ 2} In April 2011, Defendant was indicted on one count of carrying a concealed 

weapon. He filed a motion to dismiss, challenging the constitutionality of the CCW statute, 
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and a motion to suppress, both of which were overruled. After the suppression hearing 

Defendant was re-indicted, adding a charge of improper handling of a firearm in a motor 

vehicle. Defendant filed a motion to dismiss the second indictment, claiming that the R.C. 

2923.16(B) is unconstitutional under the Second Amendment to the United States 

Constitution. The trial court overruled Defendant’s motion. 

{¶ 3} Defendant pled no contest to the improper handling charge and the State 

dismissed the carrying a concealed weapon charge. The trial court sentenced Defendant to 

community control sanctions. Defendant appeals, raising one assignment of error. 

{¶ 4} Defendant’s assignment of error: 

“THE STATUTE UPON WHICH APPELLANT’S CONVICTION IS BASED IS INVALID 

IN THAT IT IS AN UNCONSTITUTIONAL INFRINGEMENT UPON THE 

FUNDAMENTAL RIGHT TO KEEP AND BEAR ARMS PROTECTED BY THE SECOND 

AMENDMENT TO THE UNITED STATES CONSTITUTION AND THUS 

NECESSITATES A REVERSAL OF HIS CONVICTION.” 

{¶ 5} Defendant was convicted of improper handling of a firearm in a motor vehicle, 

in violation of R.C. 2923.16(B), which states: “No person shall knowingly transport or have a 

loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the 

operator or any passenger without leaving the vehicle.” He maintains that the statute is 

unconstitutional because it infringes upon his Second Amendment right to keep and bear 

arms. 

{¶ 6} “It is fundamental that a court must ‘presume the constitutionality of lawfully 

enacted legislation.’” Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, ¶ 
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4, quoting Arnold v. Cleveland, 67 Ohio St.3d 35, 38, 616 N.E.2d 163 (1993). Therefore, the 

challenged legislation will not be invalidated unless the challenger proves beyond a 

reasonable doubt that the contested statute is unconstitutional. Id., citing Arnold at 39. 

{¶ 7} The Second Amendment to the United States Constitution provides: “A well 

regulated Militia, being necessary to the security of a free State, the right of the people to keep 

and bear Arms, shall not be infringed.” The United States Supreme Court has held that the 

Second Amendment right to bear arms is a fundamental right. McDonald v. Chicago, 561 

U.S. ___, 130 S.Ct. 3020, 3036-3037, 177 L.Ed.2d 894 (2010), citing Dist. of Columbia v. 

Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.E.2d 637 (2008). Accord, Klein at ¶ 7, citing 

Arnold (both interpreting the right to bear arms encompassed within Section 4, Article I of the 

Ohio Constitution). However, an individual’s right to bear arms is not unlimited. State v. 

King, 2d Dist. Montgomery 24141, 2011-Ohio-3417, ¶ 22, citing Heller at 626; Klein at ¶ 7-8. 

{¶ 8} In King, we held that R.C. 2923.16(B) does not constitutionally infringe on an 

individual’s right to bear arms. King at ¶ 25, citing Klein at ¶ 3, reasoned that the statute 

does not prohibit all transportation of firearms in motor vehicles. Instead, it limits the 

manner in which loaded firearms may be transported. Regulations regarding the manner in 

which firearms may be carried are adopted in exercise of the State’s police power. Id. at ¶22, 

citing Klein at ¶13, in turn citing Arnold at ¶ 47 and State v. Nieto, 101 Ohio St. 409, 413, 130 

N.E. 663 (1920). Such regulations “are constitutionally permissible if they impose 

reasonable limitations upon an individual’s right to bear arms.” Id., citing Klein at ¶ 14; 

Arnold at ¶ 47-48. 
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{¶ 9} We held in King that the limits upon an individual’s right to transport a loaded 

gun within reach of the driver or a passenger that R.C. 2923.16(B) imposes “are both 

appropriate and reasonable.” Id. at ¶ 23. The statutory limitation is “rationally related to a 

legitimate government interest in safety – the safety of the person possessing the firearm, the 

safety of other passengers in the vehicle, the safety of other cars on the roadway, and the 

safety of police officers who encounter these individuals.” Id. at ¶ 28, citing State v. Brown, 

168 Ohio App.3d 314, 2006-Ohio-4174, 859 N.E.2d 1017; State v. White, 3d Dist. Marion 

No. 9-96-66, 1997 WL 180307 (March 28, 1997). 

{¶ 10} Defendant asks us to reconsider our holding in King. He contends that King 

applied a rational basis test, while challenges brought pursuant to the Second Amendment, 

because it confers a fundamental right, must be decided by applying the “strict scrutiny” 

standard of review. Defendant relies on Dist. of Columbia v. Heller. However, Heller did 

not expressly prescribe a strict scrutiny standard of review for Second Amendment challenges. 

{¶ 11} A threshold question is whether Defendant’s argument is that R.C. 2923.16(B) 

is unconstitutional on its face or merely unconstitutional as applied to him. Defendant does 

not contend that the statute unconstitutionally restricts the right to transport guns in a motor 

vehicle absolutely. Instead, he argues that the statute infringes on his legitimate right of 

self-defense protected by the Second Amendment. In that respect, Defendant’s contention is 

that R.C. 2923.16(B) is unconstitutional as applied to him. However, on this record, that is 

an issue we are unable to decide. 

{¶ 12} The indictment provides us with the only information contained in the record 

regarding the factual basis for Defendant’s conviction for improper handling of a firearm in a 
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motor vehicle. Defendant has provided us with no transcripts of any of the trial court 

proceedings. We therefore are unable to discern and weigh how Defendant’s right of 

self-defense was allegedly infringed. Based on the record before us, we can only conclude 

that, factually, Defendant’s conviction falls within the appropriate and reasonable limitations 

that R.C. 2923.16(B) places on the manner in which loaded firearms may be transported in a 

motor vehicle. King.

{¶ 13} His having failed to prove beyond a reasonable doubt that the challenged 

statute is unconstitutional, Defendant’s sole assignment of error is overruled. The judgment 

of the trial court will be affirmed. 

Froelich, J., and Hall, J., concur. 

Copies mailed to: 

Andrew T. French, Esq. 

Herbert Creech, Esq. 

Hon. Frances E. McGee